EXHIBIT 10.8


 


RESTRICTED ACCOUNT AGREEMENT


 


This Restricted Account
Agreement (this “Agreement”) is entered into this 31st day of July 2008,
by and among CAPITAL ONE, N.A., a National Association operating under the laws
of the United States with offices at 404 5th Ave, NYC, New York
10018 (together with its successors and assigns, the “Bank”), MICRO
COMPONENT TECHNOLOGY, INC., a Minnesota corporation with offices at 2340 West
County Road C, St. Paul, Minnesota 55113-2528 (together with its successors and
assigns, the “Company”), and LV ADMINISTRATIVE SERVICES, INC., a Delaware
corporation as administrative and collateral agent for each lender (“Lenders”)
under the Securities Purchase Agreement dated as of July 31, 2008 by and
among, LV, the lenders party thereto from time to time (collectively, with
their respective successors and assigns, “LV”), and the Company (as amended,
modified or supplemented from time to time, the “Purchase Agreement”. 
Unless otherwise defined herein, capitalized terms used herein shall have the
meaning provided such terms in the Purchase Agreement referred to below.


 


WHEREAS, Lenders have
provided financing to the Company, which financing is evidenced by a Purchase
Agreement and the Related Agreements referred to therein;


 


WHEREAS, the Company and LV
have retained the Bank to provide certain services with respect to the
Restricted Account (as defined below); and


 


WHERERAS, the Company and LV
have agreed that an amount of cash equal to $2,303,500.00 shall be deposited by
Lenders on behalf of the Company by wire transfer of immediately available
funds into the Restricted Account, which cash shall be held by the Bank for the
benefit of LV, as security for the Company’s and its Subsidiaries’ obligations
under the Purchase Agreement and the Related Agreements.  For the purposes of this Agreement, the “Restricted
Account” shall mean that certain deposit account (as defined in Section 9-102
of the Uniform Commercial Code as in effect in the State of New York on the
date hereof) described on Exhibit B hereto, which Restricted Account shall
be maintained at the Bank and shall be in the sole dominion and control of LV;


 


NOW THEREFORE, in
consideration of the mutual promises contained herein and for other good and
valuable consideration the sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:


 


1.             The Bank is
hereby authorized to accept for deposit into the Restricted Account the sum of
$2,303,500.00.  The Bank hereby agrees to
hold any and all monies, and other amounts from time to time on deposit and/or
held in the Restricted Account for the benefit of LV and the Company and shall
not release any monies held in the Restricted Account until such time as the
Bank shall have received a notice from LV substantially in the form attached
hereto as Exhibit A (a “Release Notice”). 
Following the receipt of a Release Notice from LV, the Bank agrees to
promptly disburse the amount of cash referred to in such Release Notice to such
account or accounts as LV has 


 


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indicated in the Release
Notice.  The Bank hereby agrees that it
will only comply with written instructions originated by LV directing
disposition of funds in the Restricted Account. 
The Company hereby irrevocably authorizes the Bank to comply with any
and all instructions given to the Bank by LV with respect to the Restricted
Account without further consent by the Company. 
The Bank, the Company and LV agree that the Restricted Account is in LV’s
sole dominion and control.


 


2.             Each of the
Company, LV and the Bank hereby agrees that the Restricted Account shall not be
closed, and the account name and account number in respect thereof shall not be
changed, in any case, without the consent of the LV, except as specifically provided
for in Section 9 below.


 


3.             The Bank hereby
subordinates any claims and security interests it may have against, or with
respect to, the Restricted Account (including any amounts from time to time on
deposit therein) to the security interests of LV therein, and agrees that no
amounts shall be charged by it to, or withheld or set-off or otherwise recouped
by it from, the Restricted Account or any amounts from time to time on deposit
therein; provided that, in connection with all service charges and any other
charges which the Bank is entitled to receive in connection with the servicing
and maintaining of the Restricted Account (such charges, collectively, the “Charges”),
each of the Company, LV and the Bank hereby agrees that the Bank will collect
such Charges in the following manner: (i) first, the Bank will charge
other deposit accounts maintained by the Company with the Bank, (ii) second,
in the event that there are insufficient collected funds in such other deposit
accounts to pay such Charges, the Bank will promptly notify the Company and LV
with respect to same and, within seven (7) business days of the Company’s
receipt of such notice, the Company shall pay to the Bank the full amount of
such Charges then due, and (iii) third, if the Company fails to pay to the
Bank such Charges then due within the time period set forth in the preceding
clause (ii), the Bank will promptly provide a written notice to LV of such
occurrence and, in such case, the Bank is hereby authorized, following a period
of five (5) business days after the receipt of such written notice by LV,
to deduct such Charges then due from the Restricted Account, unless, during
such five (5) business day period, LV pays the amount of any such Charges
then due to the Bank from its own account. 
Except for the payment of the Charges as set forth in the immediately
preceding proviso, the Bank agrees that it shall not offset, deduct or claim
against the Restricted Account unless and until LV has notified the Bank in
writing that all of the Company’s obligations under the Purchase Agreement and
the Related Agreements have been performed.


 


4.             The Company and
the Bank agree that the maintenance by the Bank of the Restricted Account shall
be as agent for LV.  The Bank shall be
responsible for the performance of only such duties as are set forth
herein.  The Bank’s duties hereunder,
however, are merely ministerial, and the Bank shall have no liability or
obligation to the Company or LV or to any other person for any act or omission
of the Bank in connection with the performance of the Bank’s duties in
servicing and/or maintaining the Restricted Account, except for acts of gross
negligence or willful misconduct by Bank. 
IN NO EVENT, HOWEVER, SHALL THE BANK HAVE ANY RESPONSIBILITY FOR 


 


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CONSEQUENTIAL, INDIRECT,
SPECIAL OR EXEMPLARY DAMAGES OR LOST PROFITS, WHETHER OR NOT IT HAS NOTICE
THEREOF, AND REGARDLESS OF THE BASIS, THEORY OR NATURE OF THE ACTION UPON WHICH
THE CLAIM IS ASSERTED, NOR SHALL IT HAVE ANY RESPONSIBILITY OR LIABILITY FOR
THE VALIDITY OR ENFORCEABILITY OF ANY SECURITY INTEREST OR OTHER INTEREST OF LV
OR THE COMPANY IN THE RESTRICTED ACCOUNT. 
In furtherance of and without limiting the foregoing, the Company and LV
agree that the Bank shall not be liable for any damage or loss to them for any
delay or failure of performance arising out of the acts or omissions of any
third parties, including, but not limited to, various communication services,
courier services, the Federal Reserve system, any other bank or any third party
who may be affected by funds transactions, fire, mechanical, computer or
electrical failures or other unforeseen contingencies, strikes or any similar
or dissimilar cause beyond the reasonable control of the Bank. This paragraph
shall survive the termination of this Agreement.


 


5.             Except where
the Bank has been grossly negligent or has acted in bad faith, each of LV and
the Company and their respective successors and assigns will release the Bank
from and shall indemnify and hold the Bank harmless from and against any and
all losses, claims, damages, liabilities, costs and expenses (including,
without limitation, reasonable counsel fees, whether arising in an action or
proceeding among the parties hereto or otherwise, without regard to the merit
or lack of merit thereof) to which the Bank may become subject, or which it may
suffer or incur, arising out of or based upon this Agreement or the actions
contemplated hereby.  This paragraph shall
survive termination of this Agreement.


 


6.             The Bank shall
be fully protected in acting on any order or direction by LV respecting the
items received by the Bank or the monies or other items in the Restricted
Account without making any independent inquiry whatsoever as to LV’s rights or
authority to give such order or direction or as to the application of any
payments made pursuant thereto.


 


7.             Nothing in this
Agreement shall be deemed to prohibit the Bank from complying with its
customary procedures in the event that it is served with any legal process with
respect to the Restricted Account.


 


8.             The rights and
powers granted in this to LV have been granted in order to protect and further
perfect its security interests in the Restricted Account (including any amounts
from time to time on deposit therein) and are powers coupled with an interest
and will be affected neither by any purported revocation by the Company of this
Agreement or the rights granted to LV hereunder or by the bankruptcy,
insolvency, conservatorship or receivership of the Company or the Bank or by
the lapse of time.


 


9.             This Agreement
may not be amended or waived except by an instrument in writing signed by each
of the parties hereto.  This Agreement
may be terminated by the Bank upon giving the Company and LV thirty (30) days prior
written notice.  LV shall designate a
successor bank on or prior to the effective date of such termination and the 


 


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Bank shall deliver the
balance in the Restricted Account to such successor bank.   Any notice required to be given hereunder
may be given, and shall be deemed given when delivered, via telefax, U.S. mail
return receipt requested or nationally recognized overnight courier to each of
the parties at the address set forth above. 
This Agreement may be executed in any number of counterparts, each of
which shall be an original and all of which, when taken together, shall
constitute one agreement.  Delivery of an
executed signature page of this Agreement by facsimile transmission shall
be effective as delivery of a manually executed counterpart hereof or thereof,
as the case may be.  This Agreement shall
be governed by, and construed in accordance with, the laws of the State of New
York, without regard to its conflict of laws principles.  This Agreement sets forth the entire
agreement between the parties hereto as to the matters set forth herein and
supersede all prior communications, written or oral, with respect to the
matters herein.  EACH OF THE PARTIES HERETO
HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM, ACTION,
SUIT OR PROCEEDING ARISING OUT OF OR CONTEMPLATED BY THIS AGREEMENT.  THE BANK, THE COMPANY AND LV EACH HEREBY
SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE FEDERAL AND NEW YORK STATE COURTS
LOCATED IN THE COUNTY OF NEW YORK IN CONNECTION WITH ANY DISPUTE RELATED TO
THIS AGREEMENT OR ANY MATTERS CONTEMPLATED HEREBY OR THEREBY.


 


*              *              *              *


 


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Agreed and accepted this 31st
day of July 2008.


 


	
   

  	
  CAPITAL ONE, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  LV ADMINISTRATIVE
  SERVICES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  MICRO COMPONENT
  TECHNOLOGY, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name: Roger E. Gower

  
	
   

  	
  Title: Chief Executive
  Officer

  



 

















 


EXHIBIT A


 


RELEASE NOTICE


 


	
  To:

  	
   

  	
  Capital One, N.A.

  
	
   

  	
   

  	
  404 Fifth Ave., Suite 1

  
	
   

  	
   

  	
  New York, NY 10018

  
	
   

  	
   

  	
   

  
	
  Re:

  	
   

  	
  Account Name: Micro Component Technology, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Account Number:

  



 


Reference is made to that
certain Restricted Account Agreement, dated as of July 31, 2008 (the “Restricted
Account Agreement”), among Capital One, N.A. (the “Bank”), Micro Component
Technology, Inc. (the “Company”), and LV Administrative Services, Inc.
(“LV”).


 


This is to notify you that
LV authorizes the release of
$                          
(the “Release Amount”) from the account referenced above in accordance with the
terms of the Restricted Account Agreement. 
Within one business day following the receipt of this Release Notice,
the Bank hereby agrees to wire the Release Amount (or, in the event that the
amount in the Restricted Account is less than the Release Amount, such lesser
amount) to the following account in accordance with the wire instructions set
forth below:


 


[Insert
Wire Instructions]


 


 


	
   

  	
  LV ADMINISTRATIVE SERVICES, INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


Agreed
and accepted this      day of
                      
2008.


 


CAPITAL
ONE, N.A.


	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  
				



 

















 


EXHIBIT B


 


Restricted
Account


 


	
  ·

  	
   

  	
  Bank:

  	
   

  	
  Capital One, N.A.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ·

  	
   

  	
  Bank Routing Number:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Account Name:

  	
   

  	
  Micro Component Technology, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Account #: